The Law Journal, Spring 2024

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Effective Mediation Strategies

When to Use Them

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Spring 2024

Chief Editor

Attorney Guest Editor

Spring 2024

Fred Whitney, Esq. Whitney | Petchul

Jeffrey A. Beaumont, Esq. Beaumont Tashjian

Spring 2024 Law Journal Committee Members

John Baumgardner, Esq. Chapman & Intrieri, LLP

Karyn Larko, Esq. Epsten, APC

Nicole Soria, Esq. McKenzie Ryan & Mena, LLP

Jill Morgan, CCAM Allure Total Management

Lorena Sterling, CAFM Community Association Financial Services

Hamlet Vazquez, MCAM-HR Wilshire Terrace Co-Op

An archive of past issues can be found under Member Resources at CACM.org

The CACM Law Journal is a digital publication distributed four times per year to all members, in addition to supporters of the California Association of Community Managers.

DISCLAIMER: CACM does not assume responsibility for the accuracy of articles, events or announcements listed. Please be advised that the opinions of the authors who contribute to the Law Journal are those of the author only, and do not necessarily reflect the opinions of CACM and other industry attorneys. Please note that in a constantly evolving industry there are frequently multiple interpretations of the controlling statutes and case law. The information contained in these articles is of a general nature and not intended as legal advice. If you have any questions, please discuss them with your association’s legal counsel.

Letter from the Guest Editor

As a new year begins and the rush of the holidays is behind us, we often reflect on what we achieved in the past year and set our sights on our goals for the coming year.

Often, it’s easy to let the demands of this very fast-paced industry distract us from what is right in front of us, and we often forget about how many talented collaborators we have contributing to the success of CACM. It’s refreshing to see how many dedicated partners we still have working towards building better communities. It is a true pleasure working with the staff of CACM and the contributing attorneys.

In this new issue of the Law Journal, many authors focused on what the new year brings to common interest developments, covering new laws such as Assembly Bill (AB) 1033 regarding ADU sales and AB 1572 tackling the issue of water conservation. Many of our communities face problems like the trending hot topics addressed in this issue, such as free speech (timely given the upcoming campaign year) and how we move forward from the impacts of the Alta Del Mar decision regarding email correspondence. Our responsibility and duty is to ensure that we keep our teams and clients informed and in compliance as we navigate through the new year.

“Our responsibility and duty is to ensure that we keep our teams and clients informed and in compliance”

I sincerely thank you for allowing me the opportunity to be the guest editor, and I hope you enjoy this issue of the Law Journal.

Jeffrey A. Beaumont, Esq., is a senior partner with Beaumont Tashjian and has over 20 years of experience representing common interest developments throughout California.

LEGISLATIVE RECAP: New Laws Affecting Your Community in 2024 & Beyond

By A.J. Jahanian, Esq.

As with many prior years leading up to 2024, California’s latest legislative session was anything but stale. As many of you know, this year’s session ushered in a wave of changes that will impact associations in 2024 and beyond. These newly enacted laws span various facets of association governance, including board election procedures, water conservation, assessments, property sales, and discrimination.

Some of these new laws will immediately affect management and governance, requiring new procedures to be implemented this year. Others may only apply circumstantially. Either way, these bills are the realization of determined efforts by industry leaders, volunteers, and vocal advocates to nudge or curtail the legislative impact on our communities’ operations, management, and character.

LEGISLATIVE RECAP

Continued from page 5

ASSEMBLY BILL 1458: Election Quorum and Adjournment

Addressing the persistent challenge of achieving a quorum for director elections, AB 1458 amends Civil Code §4115 to establish a reduced quorum of twenty percent (20%) for adjourned election meetings. This alteration aims to alleviate the hurdles posed by homeowner apathy, fostering more flexibility in election proceedings. Notably, associations with lesser quorum requirements in their governing documents can continue to utilize those provisions.

AB 1458 requires the second election meeting to be at least twenty (20) days after the first. It also requires that the general/ pre-ballot notice includes a statement that the association may call a subsequent meeting where the quorum will reduce to twenty percent (20%) of the membership if it cannot reach a quorum the first time.

Boards, in general, should consider being proactive and amending the governing documents to alleviate burdensome quorum requirements. Nonetheless, AB 1458 is the legislature’s effort to improve the procedure and promote the completion of board elections and director turnover. While this bill is welcome in many communities, utilizing AB 1458 and the lower quorum threshold in an election is optional. A board may choose to stick with higher quorum requirements if desired.

ASSEMBLY BILL 1572: Potable Water/Nonfunctional Turf

Tackling the issue of water conservation, AB 1572 prohibits associations from using potable water to irrigate “nonfunctional turf” in common areas, commencing January 1, 2029. Additionally, associations managing over 5,000 square feet of irrigated common areas must certify compliance with these regulations every three years, starting January 30, 2031, through January 30, 2040.

“Nonfunctional turf” is defined as “any turf that is not functional turf and includes turf that is located within street right-ofway and parking lots.” For example, turf used for athletics, playgrounds, pets, etc., is functional and not impacted by this bill. For now, associations are not expected to take immediate action. Nonetheless, AB 1572 shows that water usage will be subject to greater regulation in the future. Community leaders may consider proactive, comprehensive water conservation strategies, including drought-tolerant landscaping and controlled water usage, preparing the community for impending regulations, including those outlined by AB 1572.

ASSEMBLY BILL 1764: Housing Omnibus (Elections, Term Limits)

To date, the law has stated that to be qualified to run for the board of directors, a candidate must be a member of the association (i.e., owner of a separate interest within the community). The association could also adopt additional qualifications, such as being current in the payment of assessments and having not been convicted of a crime that would impact the association’s insurance coverage.

Seeking to refine the qualifications for board members, AB 1764 mandates that current directors meet the same criteria as prospective candidates, per the association’s governing documents. Additionally, it clarifies that term limits are enforceable, such as provisions in the governing documents prohibiting directors and candidates for the board from serving a specified number of sequential terms.

Boards may consider performing a comprehensive review of their association’s election rules, ensuring that they are up to date and include qualifications and term limits that fit the goals and needs of the community.

ASSEMBLY BILL 572: Imposition of Assessments

Under previous iterations of the law, associations may impose regular assessments against the membership per their governing documents and increase those regular assessments by up to twenty percent (20%) without membership approval. AB 572 amends Civil Code §5605, restricting boards from levying regular assessment increases on owners of deed-restricted affordable housing units by more than five percent (5%) plus the percentage change in the cost of living. This assessment increase is capped at ten percent (10%) for communities with affordable housing units and original CC&Rs recorded after January 1, 2025.

Association boards and managers should collaborate closely with legal counsel to identify affordable housing units within the community (if any) and meticulously plan regular assessment increases to avoid conflict with AB 572. For any new associations formed after January 1, 2025, boards must remember this when budgeting for the common area expenses each year.

ASSEMBLY BILL 1033: Accessory Dwelling Unit (“ADU”) Sales

AB 1033 introduces a substantial shift by permitting municipalities to authorize the sale of ADUs separately and apart from the primary residence on the lot. Previously, owners were prohibited from selling an ADU separately from their primary residence. In other words, both the primary residence and the ADU were required to be sold together.

Additionally, under AB 1033, a local ordinance may allow for an ADU to be developed as a separate condominium building with its own condominium plan and restrictions (an association within the association!) if the association authorizes it.

This bill potentially opens the floodgates to owners selling ADUs separately from the primary residence. Constructing “an association within the association” may significantly impact community density, parking availability, and the overall character of the community.

Fortunately, AB 1033 makes clear that any proposed ADU sales or condominium developments within the association must be approved by the powers that be. This means that boards may prohibit the sale of an ADU separate from the primary residence or the development of a separate condominium building within the community. Accordingly, boards may consider developing robust policies, including amendments to their CC&Rs, governing ADU construction and sales, and safeguarding the character and integrity of the association.

The legislative changes for 2024 underscore the necessity for community leaders to be proactive. Boards and managers should review existing practices, update governing documents where necessary, and seek legal counsel to navigate the evolving regulatory landscape. Although some laws may not demand immediate action, they may signal what changes will impact the association in years to come. By staying informed and proactive, associations can ensure compliance while fostering a thriving community.

ASSEMBLY BILL 403: Discrimination Based on Ancestry

Expanding on existing anti-discrimination laws, AB 403 explicitly prohibits associations from discriminating based on ancestry or perceived social status, such as “caste.” Caste is defined as “an individual’s perceived association in a system of social stratification based on inherited status.”

Fair Housing complaints can significantly burden the association via unbudgeted expenditures on legal fees and a time-consuming administrative process involving the board and management (as well as the association’s legal counsel). Boards should be mindful that any acts or communications perceived as discriminatory, based on an owner’s or resident’s ancestry or perceived “caste,” create exposure to discrimination/Fair Housing claims. Careful communication with owners in the housing context is especially crucial.

Boards should also be proactive in ensuring their governing documents include updated cover pages that include all the protected classes, as required by Government Code §12956.1, and adopt anti-discrimination policies to protect against discrimination claims.

A.J. Jahanian, Esq., is a Partner with Beaumont Tashjian, where he devotes his time to servicing the unique needs of the firm’s clients throughout Southern and Northern California.

NAVIGATING ASSEMBLY BILL 648: VIRTUAL MEETINGS FINALLY A REALITY

BY ALEX SOHAL, ESQ.

In the 2023 legislative session, associations received a welcome change to how board meetings can be conducted. Assembly Bill 648 addresses the physical location requirement for conducting meetings via teleconference, otherwise known as virtual meetings. In this article, I will delve into the key provisions of this new law and explore how managers can navigate and leverage this shift effectively.

Enacted to update legal requirements established in a different technological era, this bill allows managers to conduct board meetings virtually, without an option for in-person attendance, if specific requirements are met. It is not a requirement to hold virtual meetings, and hybrid-style or in-person meetings remain an option for associations. As of January 1, 2024, if a board wants to conduct a virtualonly board meeting, the following are things to keep in mind when preparing the notice and the meeting itself.

In addition to the typical notice requirements, like the date and time, the notice must include three items. First, it must state clear technical instructions on how to participate virtually. Providing a step-by-step guide on accessing the virtual meeting platform and including details on how to speak during the meeting (and, more importantly, how to mute) and turn on their video would all be good details to consider.

Second, the notice must provide a telephone number and e-mail address for a person who can provide technical assistance with the virtual meeting before and during the meeting. Whether you as a manager or a dedicated technical support staff member will be performing this role, being ready a few minutes before the meeting to help anyone struggling to access the virtual meeting platform and answer technical questions should be standard practice.

Last, the notice must include a reminder that any member may request individual delivery of meeting notices and instructions on how to do so. Generally, a member can contact the association’s manager to request individual delivery, so providing a statement to that effect would suffice.

Beyond the notice requirements, managers should know a few other items:

• Any vote of the directors at the meeting must be conducted by roll call vote. In other words, when directors are prepared to vote on a motion, each director’s name should be called out, and each director should respond with their vote, which must be reflected in the meeting minutes.

• Generally, the law requires every director and member to have the same ability to participate in the meeting that would exist if the meeting were held in person, so the association should keep that goal in mind. This law creates a clear framework for virtual meetings but should not take away any ability a member or director previously had during in-person meetings. Furthermore, any person entitled to participate in the meeting shall be allowed to participate by telephone. Many virtual meeting platforms offer a phone number to call into the meeting, so this number should be disclosed as part of the notice provided to members.

An exception to this bill is a meeting at which ballots are to be counted and tabulated. Such a meeting cannot be held entirely virtually, and the physical location requirement that existed before January 1, 2024, remains in place for ballot counting meetings. Associations should ensure that when a ballot counting meeting is scheduled, the notice includes the physical location where the member can view and participate in the meeting. Interestingly, it is not abundantly clear from the language of the law whether the tabulation and counting of ballots must physically take place at the meeting location or whether the inspector of elections can perform the ballot counting virtually so members can witness. Speak with the association’s legal counsel for more information on this nuance.

On the whole, this law has created a clear option for virtual meetings with simple requirements to comply with. To summarize, managers should remember the notice must include the following:

1. Technical instructions

2. Contact information for technical support

3. Explain how to receive individual delivery of notice of meetings.

While the law does not require a specific amendment to the governing documents, managers should ensure the association’s governing documents mirror the legal requirements so boards are clear concerning expectations and compliance with the law. Adopting a rule or policy that sets expectations for future board meetings can assist with communicating the change in law, especially if members utilize or rely on the physical location requirement. Having a policy that governs member behavior, like recording meetings and procedural issues with the virtual-only platform, can help an association avoid liability and operate smoothly.

This bill provides a new option for associations and managers to increase member participation and reduce the workload related to board meetings. Managers can encourage their boards to take the virtual-only approach, except for ballot counting and tabulating, and by following the steps listed above, they create a smooth transition for boards and members alike.

“This bill provides a new option for associations and managers to increase member participation and reduce the workload related to board meetings.”

Alex Sohal, Esq., is General Counsel at McGuire Schubert Sohal LLP, serving Northern California, and has nine years of experience guiding associations in complying with the law.

POLITICAL SPEECH

HOW BEST TO HANDLE ISSUES IN A HOMEOWNERS ASSOCIATION

By Andrew S. Parslow, Esq.

The Greek politician Pericles said, “Just because you do not take an interest in politics, does not mean politics is not interested in you.” The political divide in the United States is becoming increasingly heated. While many homeowners’ associations would rather avoid this issue, this divisiveness can impact the harmony of an association and potentially lead to liability for member conduct. An association may consider passing restrictions on inflammatory political activity within an association. However, they should be careful not to interfere with members’ right to free speech. This topic will be particularly relevant in 2024 with the upcoming presidential election.

This article discusses what restrictions on political speech an association can impose to preserve harmony in the community, the extent to which certain forms of member speech are protected by law, the extent to which certain forms of nonmember speech are protected by law, as well as how an association can best avoid liability for the consequences of members’ speech. Note: Political speech can refer to internal association politics, such as the election of board members, or external politics, such as state officials. This article focuses on speech regarding external political issues. Speech can include oral statements and political conduct, such as petitioning and canvassing.

PERMISSIBLE RESTRICTIONS BY THE ASSOCIATION

Contrary to what some might think, the First Amendment and Californian Constitution protections on free speech do not apply to homeowners’ associations in most cases. Generally, constitutional protections for freedom of speech are only applicable to areas open to the public. The California Supreme Court has held that these constitutional protections do not apply to homeowners’ associations when the association “is privately owned, and … the owner restricts the public’s access to the complex.” See Golden Gateway Center v. Golden Gateway Tenants Assn. (2001) 26 Cal. 4th 1013, 1033. While not every association will satisfy this criteria, the lion’s share of homeowners’ associations are privately owned by members and have restricted access to their amenities to the public.

Associations also benefit from a presumption that any provisions in their governing documents are valid and enforceable. See Nahrstedt v. Lakeside Village Condominium. (1994) 8 Cal. 4th 361. This means that if a member files a lawsuit against an association alleging the governing documents violate their right to free speech, the member must prove the rule or restriction is unconstitutional or otherwise unenforceable.

RIGHTS OF MEMBERS

Despite not having a constitutional right to free speech in a homeowners’ association, members still have some rights to political speech guaranteed by statute. Civil Code §4515 prohibits an association from restricting members’ rights to gather at reasonable hours to discuss political matters, invite candidates for public office to speak at the association, canvass and petition association members, and distribute or circulate information regarding political issues. While an association cannot prohibit such conduct, it can limit such activity by imposing reasonable restrictions. Reasonable restrictions include requiring that meetings be peaceful, meetings not be excessively noisy, and that political activities be limited to reasonable times of day.

Members’ rights are even stronger when it comes to what they can display on the

exterior and yard of their property, even if the area is considered an exclusive-use common area. Civil Code §4710 protects members’ rights to place noncommercial banners and signage in their yard and on the exterior of their property. With some exceptions, an association cannot prohibit noncommercial signs and posters that are nine square feet in size or less and noncommercial flags or banners that are fifteen square feet in size or less. Noncommercial signage below the maximum height can only be prohibited if:

• it is made of certain materials such as lights, roofing, siding, paving materials, flora, or balloons,

• such a prohibition is required for public safety,

• or the display violates a pertinent law.

RIGHTS OF NON-MEMBERS IN THE ASSOCIATION

Even if they are not residents of an association, members of the public may, in some instances, have political speech rights within a homeowners’ association. As previously stated, general constitutional protections on speech do not apply to homeowners’ associations due to associations’ public access restrictions. When an association opens its amenities to the public, such as renting out facilities for weddings or allowing nonresidents to use its golf course, nonmembers may have the right to canvas, petition, and distribute political materials.

FURTHER AVOIDING PROBLEMATIC CONDUCT IN THE ASSOCIATION

Despite an association’s best efforts, there is always a risk that members will take offense to other members exercising their rights to speech. This could lead to retaliatory conduct between members.

Perhaps the simplest and most effective method an association can employ to curtail problematic speech and reactive actions members may take to political speech is a catch-all prohibition in the governing documents on activity that constitutes a nuisance. This broad restriction allows an association to prohibit members from engaging in harmful or offensive activities without expressly prohibiting any form or content of speech.

The First Amendment and Californian Constitution protections on free speech do not apply to homeowners’ associations in most cases.

Andrew S. Parslow, Esq. is an attorney at Feldsott, Lee & Nichter in Laguna Hills. He has spent the past two years specializing in community association law.

SEND THINK TWICE BEFORE CLICKING

By Kyle Lakin, Esq.

THE IMPACT OF ALTA DEL MAR ON E-MAIL COMMUNICATIONS

The recent Court of Appeal opinion in L NSU #1, LLC v. Alta Del Mar Coastal Collection Community Assn.(2023)

94 Cal.App.5th 1050 (“Alta Del Mar”) changed how e-mail communications among community association board members are viewed, giving directors more leeway in communicating with each other outside of a board meeting. That is good for the board, but directors should still think twice before e-mailing other directors.

The primary issue in Alta Del Mar was whether e-mails among directors for an association board of directors constituted a “board meeting” under Civil Code §4090(a). Section 4090(a) defines “board meeting” as “[a] congregation, at the same time and place, of a sufficient number of directors to establish a quorum of the board, to hear, discuss, or deliberate upon any item of business that is within the authority of the board.”

(Emphasis added.)

Before Alta Del Mar, many believed that directors should limit discussing association business by e-mail to avoid a potential illegal meeting. In Alta Del Mar, the complaining homeowners contended that directors were conducting meetings violating the Civil Code by discussing association business by e-mail. They argued that “congregation,” as used in Civil Code §4090(a), encompassed a “virtual assembly by means of e-mail” because “e-mail allows directors to communicate with one another simultaneously on items of board business in the same place, namely, cyberspace.” (Alta Del Mar at 1074-75.)

The Court rejected the homeowners’ position that e-mails were a “board meeting,” concluding:

“Board meeting,” as defined by §4090(a), is an inperson gathering of a quorum of the directors of a homeowners association at the same time and in the same physical location to talk about and act on items of association business. E-mail exchanges among directors on those items that occur before a board meeting and in which no action is taken on the items, such as those at issue in this case, do not constitute board meetings within the meaning of that provision. (Alta Del Mar at 1079 (emphasis added).)

In reaching its conclusion, the Court noted that “by discussing items of Association business in e-mails…, the directors did nothing contrary to the purpose of the [statute] because they took no action on those items in the e-mails.” (Id. at 1079 (emphasis added).)

Although e-mail is a convenient, affordable, and private way of communicating with others and creating a written record for the participants, directors should exercise caution when exchanging e-mails about association business. One potential issue is the risk of e-mails drifting from discussion to action. E-mail makes it easy for directors to quickly “reply all” with their opinion or agreement on a course of action. One obvious thing to avoid is making a motion by e-mail or inviting other board members to vote or agree on a course of action by e-mail.

E-MAILS CAN AND WILL BE USED AGAINST THE ASSOCIATION AND THE BOARD IN LITIGATION.

To limit the preceding issues, before sending or replying to an e-mail, consider the following:

1. Is it necessary to discuss the business item before the scheduled board meeting? If not, wait until the meeting.

2. If it is necessary to discuss the item of business, is it necessary to include the entire board of directors in the e-mail?

Another potential risk is that e-mail creates a written record of the entire exchange, which could be a liability. Absent an applicable privilege (e.g., the attorney-client privilege), e-mails are discoverable in litigation (i.e., they may need to be provided to the other parties). Directors should think twice about what they discuss by e-mail and the words they choose to put in their e-mails. E-mails can and will be used against the association and the board in litigation.

Also, e-mails lack non-verbal cues and emotional tone, which may be necessary to understand the sender’s intent and meaning. Think of the times you have received an e-mail where you were unsure of the meaning or the sender’s intent. Misinterpretation could lead to misunderstanding and a breakdown in relations that affect director relationships. Some discussions may be better received and understood in person rather than by e-mail.

E-mails also potentially deprive homeowners of hearing the board’s discussion on association business. As stated by the Court, “…the purpose of the [statute] is to ensure members of a homeowners association are informed about and have input into the actions to be taken by the association’s board of directors on matters affecting the community in which they live.” (Id.) Holding meetings where homeowners can hear board discussions and votes on association actions provides transparency. When a board conducts all its discussions by e-mail and then acts at board meetings without any discussion, there is a lack of transparency for the homeowners.

3. If discussion by e-mail is necessary, keep the e-mail discussion to a minimum. Avoid creating a circumstance where the exchange moves from discussion to action. Do not make or invite a motion or resolution, nor reach an “agreement” on a course of action.

4. If board action by e-mail is necessary due to an emergency within the meaning of Civil Code §4923, make sure “all directors, individually or collectively, consent in writing to that action” and the “written consent or consents are filed with the minutes of the board meeting.”  (Civ. Code §4910(b)(2).)

The California Supreme Court declined to review the Alta Del Mar opinion, so unless the Legislature amends the Civil Code, Alta Del Mar has opened the door for directors to discuss association business by e-mail, provided no action is taken by e-mail. Regardless, boards must exercise diligence and caution when e-mailing. When in doubt, boards should confer with legal counsel.

A Founding Partner at Delphi Law Group, LLP, in Carlsbad, Kyle Lakin, Esq. has been an attorney for 25 years and has spent the last 14 years representing common interest developments.

Bridging the Gap

S B428 EXPANDS AVAILABLE PROTECTIONS IN THE “HOA WORKPLACE”

By Daniel C. Heaton, Esq. and Youstina N. Aziz, Esq.

By now, most individuals in the industry are aware of the newly adopted AB648 (virtual meetings) and AB1458 (lowered quorum). However, SB428 is another bill that managed to fly under the radar and will ultimately have a significant impact by providing associations with a more expansive tool to protect those who serve community associations, including board members and community managers.

WHAT WAS MISSING?

Code of Civil Procedure (“CCP”) §527.8 currently allows an employer to seek a restraining order on behalf of employees who have suffered unlawful violence or a credible threat of violence in the workplace. The term “employee” includes board members, as well as “a volunteer or independent contractor who performs services for the employer at the employer’s worksite.” In the context of community associations, this phrase is often interpreted broadly to include not only the board but also managers, committee members, and some vendors that provide direct services within the community.

However, the statute is limited in the type of misconduct that triggers the right, requiring violence or threats of violence. As a result, associations have not been able to pursue a restraining order to protect against behavior that does not reach this threshold. Even in cases when an errant homeowner or other third party is continually harassing members of the board or the community manager, the association is not able to step in and seek a restraining order on their behalf until the conduct crosses the line into threats of violence. Instead, these individuals have been forced to pursue their own relief by personally filing for a “Civil Harassment Restraining Order” under alternate provision CCP §527.6.

Employers and employees should not have to wait for conduct to escalate before being able to seek protection from the courts.

BRIDGING THE GAP

On September 30, 2023, Governor Newsom signed SB428, amending CCP §527.8 to expand available protections for employees in the homeowners association workplace. The amendments take effect January 1, 2025, and will authorize an employer to seek a restraining order on behalf of an employee who has suffered harassment. “Harassment” here means “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.”

The new provision allows associations to immediately access the courts to request a temporary restraining order to protect their agents from this type of conduct. Generally, the judge will decide whether to issue a protective order that same day, and a copy is transmitted to local law enforcement. The court will then schedule a second hearing, usually within 21 days, to determine whether a “permanent order” should be entered extending the protections for up to three years.

The Legislature’s addition of “harassment” as a new type of wrongful conduct justifying court relief gives boards a significantly broader tool to be able to protect themselves and their managers, volunteers, and vendors from abusive conduct, even when there is no fear that it may escalate to violence. The afforded protections carry significant weight, as disobedience to a restraining order qualifies as a misdemeanor punishable by a hefty fine, imprisonment, or both.

LIMITATIONS TO CONSIDER

Associations and their legal counsel will still be required to consider certain limitations when deciding whether to seek relief from the courts under the new provisions of CCP §527.8.

First, SB428 adds a new requirement that employers allow employees to decline to be named in the application. Although most attorneys will already do this as a matter of good practice, this requirement may prove to be a barrier to seeking relief. Some employees might be uncomfortable disclosing their identities or refuse to sign supporting affidavits, making it more challenging to provide the court with sufficient evidence to grant the order.

Second, the definition of “harassment” includes a built-in requirement that the conduct “serves no legitimate purpose.” This limitation ensures that courts do not grant a restraining order if it infringes upon other constitutional or labor rights. In the context of community associations, the Fourth District Court of Appeal recently examined whether harassing conduct was for a legitimate purpose in the unpublished case of Manrodt v. Albelo, 2023 WL 4557605 (July 17, 2023). The case involved

an owner seeking a Civil Harassment Restraining Order against her neighbor, who followed her family around to take pictures and video record them. The neighbor argued that he recorded them in case they violated the rules. While the court recognized that it may be appropriate to document ongoing violations, it characterized the neighbor’s conduct as having no legitimate purpose. Instead, it was simply a tool of harassment or potential illegal activity.

Third, associations must also consider the financial implications of pursuing a restraining order on behalf of their “employees.” Section 527.8 does not include the automatic attorney fee provision for “prevailing parties” that boards may be used to when they engage in other enforcement actions. Instead, associations will be responsible for these legal expenses.

By expanding the type of conduct associations can address through the restraining order process, the California Legislature bridged the gap to help provide much-needed protections and relief to “employees” of community associations. Boards and community managers should keep these provisions in mind and plan to consult their legal counsel for

Daniel C. Heaton, Esq., and Youstina N. Aziz, Esq., are Senior Attorneys at Nordberg | DeNichilo, LLP, serving as corporate and litigation counsel to community associations throughout California.

FREE SPEECH RIGHTS

WHAT ARE THE LIMITS?

By David Feingold, Esq.

In recent years, a trending issue has been how to deal with threatening, harassing, or defamatory statements that target community managers, directors, vendors, and sometimes other residents. I authored two recent articles for the Law Journal related Handling Harassment 101 (Spring 2022) and Dealing with Difficult People (Winter 2023), which can be accessed on the CACM website. As the title suggests, this article will address the limits of free speech to provide community managers with a deeper understanding of where the line, ever-shifting, might be today.

FREE SPEECH RIGHTS MATTER

Free speech rights may be invoked only against governmental entities, not by your misguided relative to force you to listen to their rants at Thanksgiving dinner. Common interest developments are deemed quasigovernmental entities and thus must respect the free speech rights of individuals. However, free speech rights are not absolute, and there are no protections for speech that crosses the line into criminal activity, including incitement, threats, actionable civil harassment, or defamation.

CRIMINAL ACTIVITY

Most know that falsely shouting “fire” in a crowded theater crosses the line into criminal activity, an analogy used in the 1919 U.S. Supreme Court case

of Schenck v. United States to illustrate that speech is not protected if it is intended to incite others to action that would present a clear and present danger. That test has been modified, most notably by the 1969 case of Brandenburg v. Ohio, in which the test was changed to focus on whether the words used were such that they would incite imminent lawless action and were likely to produce such action.

In addition to incitement, statements that constitute “true threats” may be crimes and not protected speech. For years, the test was whether a reasonable person would interpret the statements as an intent to harm, an objective standard. However, this objective test was recently modified by the 2022 U.S. Supreme Court case of Counterman v. Colorado, which involved Billy Counterman, an obsessed fan who sent hundreds of unsolicited Facebook messages to a local singer, including

messages ranging from “good morning, sweetheart” to “die.” The prosecution argued that these posts constituted “true threats” when viewed objectively, regardless of Billy’s subjective intent. In contrast, the defense argued that Billy’s subjective mindset must be considered. The Court agreed with Billy and held that a criminal threat required proving a subjective understanding of the threatening nature of the statements or that the statements were recklessly made.

The line is blurry, which is why the police officer who is asked to take a report about a member making threats against the board, management, or vendors may seem skeptical that a crime has been committed and advise that the threatened person seek a civil restraining order or file a civil action, and why the local prosecutor often refuses to bring criminal charges.

CIVIL WRONGS: HARASSMENT AND DEFAMATION

While speech may not be a crime, it may be actionable harassment or defamation. Under California law, civil harassment includes any course of conduct that seriously alarms, annoys, or harasses, which serves no legitimate purpose, and which causes substantial emotional distress. Defamation refers to false statements of fact made about a person that harms that person’s reputation and may arise from spoken words (slander) or written words (libel).

Like criminal threats, there is no bright line test for civil wrongs, and case law is replete with examples of rude, obnoxious, and even false speech being protected. In Damon v. Ocean Hills Journalism Club (2000), the Court dismissed a former manager’s defamation case against members who had published letters or articles accusing him of incompetence and demanding he be fired, as such speech was protected. In Cabrera v. Alam (2011), a sitting director running for reelection sued a critic for defamation after she accused him of having “stolen from and defrauded the association” in an open meeting. The statements were protected speech, and the case was dismissed after the director could not show a probability

of proving that the statements were false and made with actual malice or a reckless disregard for the truth. There are numerous instructive unpublished cases as well, including one in which a director facing recall sued members for defamation after they had asserted that the director was a “convicted criminal” and a “child molester” in public meetings and on a website. The speech was deemed protected, and the case was dismissed. (Glassner v. Smith (unpublished, not citable - 2015 WL 2127065).)

Finally, in a reflection of the trend toward extreme political polarization, a defamation lawsuit was filed against a candidate running for the highest office in the land, alleging that the candidate’s social media posts asserting that the Plaintiff was “a real dummy,” and “a major loser” with “zero credibility,” was dismissed as such statements were deemed matters of opinion. (Jacobus v Trump (2017 NY Slip Op 27006).)

While these examples are discouraging, it is crucial to understand that directors and community managers under attack, especially in their individual capacity, are also free to speak their minds and refute the claims against them. Even actions by a board of directors may enjoy free speech protection, as illustrated by the 2022 U.S. Supreme Court case of Houston Community College System v. Wilson, in which a board’s censure of a sitting director, which publicly declared the director’s actions as “not only inappropriate but reprehensible,” was deemed protected speech.

MANAGER TAKEAWAYS

The sharp rise of highly critical and personal attacks in community association life is new and, in my view, resulted from two compounding factors. The first factor is how those rights are exercised. The ubiquitous use of the internet, email, and social media has allowed for immediate, impersonal communications without a cooling off period or the normal human tendency to be respectful in a face-to-face interaction. The second factor is the steep decline in the civility of political discourse at the highest level, where name-calling and threats have replaced sober policy discussions.

WHEN BEING BARKED AT AGGRESSIVELY, IT IS PERFECTLY ACCEPTABLE TO BARK RIGHT BACK ‘‘

While a community manager is not expected to become an expert in the legal nuances of free speech rights, these two takeaways must be kept in mind. First, just as free speech rights are fundamental to a functioning democratic society, they are also critical to a functioning and thriving community of homeowners, and one must expect criticism and guard against overreacting when the political discourse becomes personal. Second, when being barked at aggressively, it is perfectly acceptable to bark right back in most cases (and ideally after receiving guidance from legal counsel).

David F. Feingold, Esq. is a Partner at the Ragghianti Freitas LLP law firm and has represented common interest developments in the Bay area since 1986.

2023-2024 LEGAL DIRECTORY

ASSESSMENT COLLECTION SERVICES

ALLIED TRUSTEE SERVICES

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Stefan Murphy

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ALTERRA ASSESSMENT RECOVERY

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COMMUNITY LEGAL ADVISORS, INC.

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FELDSOTT, LEE & NICHTER, ATTORNEYS AT LAW

General Counsel, Community Association Law

Stanley Feldsott, Martin Lee, and Austin Nichter

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UNITED TRUSTEE SERVICES

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ATTORNEYS

BEAUMONT TASHJIAN

General Counsel & Assessment Collection Services

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COMMUNITY LEGAL ADVISORS, INC.

General Counsel & Assessment Collections

Mark Guithues, Esq., Laurie Masotto, Esq., Jeffrey Speights, Esq.

Inland Empire | Orange County | San Diego 509 N. Coast Hwy. Oceanside, CA 92054 (760) 529-5211 • Fax (760) 453-2194 mark@attorneyforhoa.com www.attorneyforhoa.com

EPSTEN, APC

Association Counsel, Civil Litigation, Litigation, Commercial CID Counsel, Senior Housing & Assessment Recovery Collection

Jon Epsten, Esq. & Susan Hawks McClintic, Esq. San Diego | Inland Empire | Coachella Valley 3111 Camino del Rio North, Ste. 560 San Diego, CA 92108 (858) 527-0111 • Fax (858) 527-1531 info@epsten.com www.epsten.com

FIORE RACOBS & POWERS, A PLC

Community Association Law and Assessment Collections

Jacqueline D. Foster, Esq., Peter E. Racobs, Esq., & John R. MacDowell, Esq.

The Recognized Authority in Community Association Law

Orange County | Inland Empire | Coachella Valley l San Diego County (877) 31-FIORE • Fax (949) 727-3311

dweissberg@fiorelaw.com www.fiorelaw.com

FLANAGAN LAW, APC

Community Association Law and Collections Tim Flanagan, Esq. San Diego, Orange County, Temecula, Coachella Valley 6050 Santo Road, Suite 220 San Diego, CA 92124 (619) 489-3100 tim@flanaganhoalaw.com www.flanaganhoalaw.com

GURALNICK & GILLILAND, LLP

Association Law, Assessment Collections, General Counsel

Wayne S. Guralnick, Robert J. Gilliland Jr. Serving Community Associations for Over 30 Years

40004 Cook St., Ste. 3 Palm Desert, CA 92211 (760) 340-1515 • Fax (760) 568-3053

wayneg@gghoalaw.com www.gghoalaw.com

HICKEY & ASSOCIATES, P.C.

Community Association Law

David E. Hickey, Esq.

27261 Las Ramblas, Ste. 120 Mission Viejo, CA 92691 (949) 614-1550 • Fax (949) 748-3990

dhickey@hickeyassociates.net

www.HickeyAssociates.net

HUGHES GILL COCHRANE TINETTI, PC

Community Association & Construction Defect Law

John P. Gill, Esq. l Amy K. Tinetti, Esq. 2820 Shadelands Dr., Ste. 160 Walnut Creek, CA 94598 (925) 926-1200 • Fax (925) 926-1202

atinetti@hughes-gill.com

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THE JUDGE LAW FIRM

HOA Law

James Judge, Esq.

Providing General Counsel & Collection Services Throughout CA for Over 20 Years

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(949) 833-8633 • Fax (949) 833-0154

info@thejudgefirm.com

www.thejudgefirm.com

KRIGER LAW FIRM

Community Association Law and Assessment Recovery

Bradley Schuber

Serving Community Associations for Over 30 Years

8220 University Ave., Ste. 100 La Mesa, CA 91942 (619) 589-8800 • Fax (619) 589-2680

bschuber@krigerlawfirm.com

www.krigerlawfirm.com

LOEWENTHAL, HILLSHAFER & CARTER, LLP

Construction Defect Litigation

David Loewenthal I Robert Hillshafer

Los Angeles, Ventura & Surrounding Counties

5700 Canoga Ave., Ste. 160 Woodland Hills, CA 91367 (866) 474-5529 • Fax (818) 905-6372

info@lhclawyers.net lhclawyers.net

Continues on page 20

2023-24 LEGAL DIRECTORY

Continued from page 19

THE NAUMANN LAW FIRM, PC

Construction Defect Litigation

Construction Defect Analysis

William H. Naumann

SERVING CALIFORNIA WITH MORE THAN

40 YEARS EXPERIENCE

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PRATT & ASSOCIATES, APC

Community Association Law

Sharon Glenn Pratt Los Gatos, CA

634 North Santa Cruz Ave., Ste. 204 Los Gatos, CA 95030 (408) 369-0800 • Fax (408) 369-0752 spratt@prattattorneys.com www.prattattorneys.com

RAGGHIANTI FREITAS LLP

Community Association Law

Construction Defects & Mediation

David F. Feingold, Esq.

Matthew A. Haulk, Esq.

Serving Bay Area Communities Since 1986 1101 Fifth Ave., Ste. 100 San Rafael, CA 94901 (415) 453-9433 • Fax (415) 453-8269

dfeingold@rflawllp.com www.rflawllp.com

RICHARDSON OBER, LLP

Community Association Law, General Counsel, Assessment Recovery Kelly G. Richardson, Matt D. Ober

Throughout California

234 E. Colorado Blvd., Ste. 800 Pasadena, CA 91101 (877) 446-2529 • Fax (415) 453-8269 info@roattorneys.com www.roattorneys.com

SWEDELSONGOTTLIEB

Community Association Law, Construction Defect, Assessment Collection

David C. Swedelson, Esq.

Sandra L. Gottlieb, Esq.

Los Angeles | Orange County | Palm Desert | San Francisco l Ventura 11900 W. Olympic Blvd., Ste. 700 Los Angeles, CA 90064 (800) 372-2207 • Fax (310) 207-2115

slg@sghoalaw.com

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TINNELLY LAW GROUP

Community Association Law

Steven J. Tinnelly, Managing Partner & Richard A. Tinnelly, Senior Partner Orange County | Los Angeles | San Diego | Coachella Valley | Northern CA 27101 Puerta Real, Ste. 250 Mission Viejo, CA 92691 (949) 588-0866

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WHITE LAW GROUP, INC. COMMUNITY ASSOCIATION LAW, CONSTRUCTION DEFECT LAW

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WHITNEY PETCHUL APC

Community Association Attorneys

Fred T. Whitney, Esq. / Dirk E. Petchul, Esq. From Inception To Build-Out And Beyond 27 Orchard Rd. Lake Forest, CA 92630 (949) 766-4700 • Fax (949) 766-4712 dpetchul@whitneypetchul.com www.whitneypetchul.com

WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP

Community Association Law

Michael W. Rabkin, Esq.

11400 W. Olympic Blvd., 9th Floor Los Angeles, CA 90064 (310) 744-4100 • Fax (310) 479-1422

mrabkin@wrslawyers.com

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CONSTRUCTION DEFECTS

BERDING | WEIL

Construction Defect Litigation

Steven Weil, Tyler Berding, Chad Thomas, Daniel Rottinghaus, Andrew Baugh, Paul Windust

Walnut Creek, San Diego, Orange County, Sacramento

2175 North California Blvd., Ste. 500

Walnut Creek, CA 94596

(800) 838-2090 • Fax (925) 820-5592

jjackson@berdingweil.com

www.berdingweil.com

CHAPMAN & INTRIERI, LLP

General Counsel & Construction Defect Litigation

John W. Chapman, Esq. & Mark G. Intrieri, Esq.

Alameda l Roseville l Orange County l San Diego

2236 Mariner Square Dr., Ste. 300

Alameda, CA 94501

(510) 864-3600 • Fax (510) 864-3601

jchapman@cnilawfirm.com

www.cnilawfirm.com

FENTON GRANT KANEDA & LITT, LLP

Construction Defect Litigation & CID Education

Charles R. Fenton, Esq. & Joseph Kaneda, Esq.

Servicing California & Nevada

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Irvine, CA 92614

(877) 520-3455 • Fax (949) 435-3801

kkrupp@fentongrant.com

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THE MILLER LAW FIRM

Construction Defect Analysis & Litigation

Thomas E. Miller, Esq. & Rachel M. Miller, Esq.

The Authority in California Construction Defect Claims for 40 Years 19 Corporate Plaza Dr. Newport Beach, CA 92660 (800) 403-3332 • Fax (929) 442-0646

rachel@constructiondefects.com www.constructiondefects.com

RILEY PASEK CANTY LLP

Construction Defect Resolution & Construction Defect Analysis Attorneys

Rick Riley, Melissa Pasek, Kevin Canty Representing Community Associations

Throughout the State of California 780 San Ramon Valley Blvd. Danville, CA 94526 (844) 775-5000

JWebster@RileyPasek.com www.rileypasek.com

ELECTION ADMINISTRATION

ACCURATE OUTCOME, LLC

Election Administration

Denise La Fond

Because Accuracy Matters

18336 Soledad Canyon Rd., Ste. 3125 Canyon Country, CA 91386 (661) 310-8828

info@accurateoutcome.net www.accurateoutcome.net

THE INSPECTORS OF ELECTION

Providing Superior Election Support for California HOA’s Since 2006

Kurtis Peterson

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LIBERTY HOA ELECTION SERVICES, LLC

Election Administration

Deanna M. Libert

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deanna@hoaelection.com

www.hoaelection.com

RESERVE STUDY FIRMS

THE HELSING GROUP, INC.

Reserve Study Firm

Ryan Leptien

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4000 Executive Pkwy., Ste. 100 San Ramon, CA 94583 (925) 355-2100 • Fax (925) 355-9600

reservestudies@helsing.com www.helsing.com

VENDOR COMPLIANCE

ASSOCIATION SERVICES NETWORK

Vendor Compliance

David Jeranko

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24000 Alicia Pkwy., Ste. 17-442 Mission Viejo, CA 92691 (949) 300-3702 • Fax (877) 404-2008 davidj@asn4hoa.com

www.asn4hoa.com